2019 Greek Housing Conference Trends in the Greek System May 4, 2019

1. 2019 Greek Housing Conference Trends in the Greek System May 4, 2019 Sean P. Callan Sean.callan@fraternallaw.com (513) 763-6751 www.fraternallaw.com

2. Trends Associational/Speech Rights Single Sex Organizational Rights Zoning/Right to Use Title IX/Student Conduct Cases

3. Associational/Speech Rights

4. Associational/Speech Rights Chapter shutdowns for member acts Interim suspensions Campus wide shutdowns Deferred recruitment Recognized housing programs

5. Associational/Speech Rights USC • Deferred Recruitment • Leonard Law • First Amendment claims • No non-member plaintiffs • HELD - Speech includes expressive association • BUT - “genuine academic judgment” defeats Leonard claim HARVARD • Policy discourages membership • State case - MCRA • MTD – standing; weak First Amendment right • Briefing now complete

6. Single Sex Organization

7. Single Sex Organization All comers policies Transgender member policies Non-discrimination policies Title IX (and Birch Bayh)

8. Single Sex Organization YALE • 3 women sued fraternities and Yale • Public accommodation/Title IX case • Women cannot live in fraternity violates FHA • Hostile environment • Request for relief that fraternities admit women • Defense – Title IX Exemption HARVARD • Issue found in both cases • Offensive use of Title IX • Harvard policy discriminates on basis of sex by legislating associational partners • Briefing now complete

9. Zoning

10. Zoning student residence, Institution district A building designed for and occupied by students and operated in conjunction with another institutional use, which may include individual living units with social rooms and kitchen facilities for any number of students.

11. Zoning “Fraternity/Sorority House” means a building or portion thereof used for sleeping accommodations, with or without accessory common rooms and cooking and eating facilities, for groups of unmarried students who meet the following requirements: all students living in the building are enrolled at Indiana University, Bloomington Campus; and Indiana University has sanctioned or recognized the students living in the building as being members of a fraternity or sorority through whatever procedures Indiana University uses to render such a sanction or recognition.

12. Title IX/Student Conduct Cases

13. Title IX/Student Conduct Cases Courts moving toward more protections More due process Concern with “real world” ramifications Starting to resonate administratively

14. Title IX/Student Conduct Cases “if credibility is in dispute and material to the outcome, due process requires cross-examination. See 872 F.3d at 406 (recognizing that credibility disputes might be more common in sexual misconduct proceedings than other university disciplinary investigations).”Doe v. Baum, 903 F.3d 575, 584 (6th Cir.2018)

15. Trending Issues Employment Contracts/DOL Updates Emotional Support Animals Medical Excuses Role of the House Corp. Board

16. Trending Issues Mental Health Marijuana Room searches Cameras Guns Other Issues?

17. EMPLOYMENT CONTRACTS

18. Employment ContractsExempt or Non-Exempt Two tests must be satisfied to qualify as an “exempt” employee (i) a salary threshold test; and (ii) the duties test.        

19. Employment ContractsExempt or Non-Exempt Employees are presumed non-exempt unless they engage in work that qualifies them for exemption (and, of course, are paid enough money).  The job duties that qualify an employee as exempt are (generally) Executive, Administrative and Professional. 

20. Employment ContractsExempt or Non-Exempt Current Threshold - $ 455 per week $ 23,660 per year Proposed Threshold - $ 679 per week $ 35,308 per year Obama Proposal - $ 913 per week $ 47,476 per year

21. Employment ContractsExempt or Non-Exempt Penalty for Being Wrong back pay including unpaid overtime compensation (24/7) “liquidated damages” equal to backpay. “fee shifting” statute meaning that attorney’s fees and costs are also recoverable.

22. Employment ContractsExempt or Non-Exempt Focus on tracking “Hours Worked” Electronic check in/check out system Time sheet Scheduling Sign for payroll

23. Emotional Support Animals

24. Emotional Support Animals Two main statutes that we need to look at ADA FHA

25. Emotional Support Animals Americans with Disabilities Act Generally prohibits discrimination based on disability in places of public accomodation. The provisions of this subchapter shall not apply to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 (42 U.S.C. 2000–a(e)) [42 U.S.C. 2000a et seq.]. . .

26. Emotional Support Animals Fair Housing Act The Fair Housing Act (FHA) prohibits discrimination in renting, buying, or securing financing for any housing. The prohibitions specifically cover discrimination because of race, color, national origin, religion, sex, disability and the presence of children.

27. Emotional Support Animals Fair Housing Act • Prohibits discrimination against persons with disabilities. • Requires housing providers to make reasonable accommodations for persons with disabilities. • Requires housing providers to allow persons with disabilities to make reasonable modifications.

28. Emotional Support Animals Fair Housing Act Are social organizations exempt? Nothing in this subchapter shall . . .  prohibit a private club not in fact open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such lodgings to its members or from giving preference to its members.

29. Emotional Support Animals Fair Housing Act Reading the statute literally, a fraternity is permitted to discriminate in housing by leasing only to its members.  However, within the ranks of its membership, a fraternity is NOT permitted to discriminate. 

30. Emotional Support Animals Fair Housing Act Could we have a rule that members with disabilities are prohibited from living in chapter houses? If not, then it follows that fraternities must make accommodations to facilitate that use, i.e., the use of emotional support animals.

31. Emotional Support Animals So….. What can we do? Require a letter from the member explaining: the need for the animal, the type of animal, a description of the animal, the animal’s name, whether the animal is housebroken, the date[s] of the medical examinations and prescriptions specifying the need for such the animal, and the date when the animal was acquired

32. Emotional Support Animals You can also….. Require a letter from the member’s physician. . . Not. . .

33. Emotional Support Animals Fair Housing Act Professional letter should include: the nature of the applicant’s disability, the provider’s opinion that the condition affects a major life activity, how the animal is necessary to provide the impaired student access to fraternity housing, and the relationship between the disability and the assistance the animal provides.

34. Emotional Support Animals Fair Housing Act - Consider Accommodation Is the accommodation request reasonable? Would accommodation result in an undue financial or administrative burden? Would accommodation fundamentally alter the nature of the house? Does the specific animal pose a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation? Does the specific animal pose a risk of substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

35. Emotional Support Animals Fair Housing Act If after request, consideration, and assessment, accommodation is deemed reasonable, come up with a plan –

36. Emotional Support Animals Fair Housing Act

37. Medical Excuses

38. Medical Excuses Purpose – avoid contractual obligations Death or disabling illness would excuse performance of a contract for personal service – but NOT a lease The only way to break a lease is by using the disability framework Medical excuses should be considered in the same FHA framework as ESAs

39. Medical Excuses To Whom It May Concern ************* was at **********on 01/09/2019. She is being treated for ****************, she is followed also by Cardiology. If you have any questions or concerns, or if I can be of further assistance, please do not hesitate to contact me

40. Role of Board Member

41. Role of Board Member Main Functions Ancillary Functions Particularized skill (legal, financial, operational) Fundraising Board contributions Operations (the start up) Recruitment – officers and board Others? • Fiduciary • Oversight

42. Role of Board Member Things that are not your job….. Therapist Police officer Friend and confidante Parent Caretaker Stay in your lane….

43. Role of Board Member Smith v. Delta Tau Delta A duty of care may arise where one party assumes such a duty, either gratuitously or voluntarily. The assumption of such a duty creates a special relationship between the parties and a corresponding duty to act in the manner of a reasonably prudent person.

44. Role of Board Member Smith v. Delta Tau Delta There is no evidence that the [national fraternity] assumed any duty of preventative, direct supervision and control of the behaviors of its local chapter members.

45. Hot Topics Mental Health Marijuana Room searches Cameras Guns Other Issues?

46. Sean P. Callan, Esq. sean.callan@fraternallaw.com (513) 763-6751 www.fraternallaw.com